Professor: Jennifer Robbennolt
Semester: Fall 1L
Type: Outline – Full Review
Summary: This is an outline of the material presented in Torts in Fall 2011 as taught by Professor Robbennolt. The material is presented topically, which is also how the majority of the material was presented in the course, but specific case details were not relevant and are not listed here although case names are presented as study assistance.
· Torts are civil actions for non-contractual wrongs. Money is usually the reward for a plaintiff winning a torts claim.
· Negligence (most common), Intentional Torts, strict liability are the three categories of torts
· Torts are used to deter future tort-feasors, create remedies for civil actions and correct wrongs usually with $$
· General Rule
§ Need to do something
o Harm to Another
· Punitive Damages in Intentional Torts
o When a defendant’s conduct is particularly egregious—that is, when the defendant either acts with intent to harm or with willful or wanton disregard of whether harm will occur—most courts allow a jury to assess punitive damages (Malice)
· Compensatory damages alone may not sufficiently deter bad actors from engaging in nefarious conduct
· Allows society to express its sense of outrage against the defendant’s conduct
· Justify plaintiff’s legal fees that were paid to prevail in the case.
Intent (subjective test)
· Elements of intent (only need one)
o (1) Desire to cause the consequences of the act – true purpose to bring about a particular state of affairs.
§ Ex: (a)Harmful or (b) offensive touching
o (2) Belief that the consequences are substantially certain to result
§ Ex: (a)Harmful or (b) offensive touching
· 4 types of possibilities (harmful/offensive) for each category
o Only need to show 1 of 4
· Case: Garrett v. Dailey
o D (5 years old) pulls chair from P as she is sitting down. Even if D did not desire her to hit the ground, he was substantially certain that she would. Intent for battery. The big thing here, is the kid did not have purpose to bring about the harmful of offensive contact but since he was substantially certain that harmful or offensive contact would result given his actions, the court held that he had the requisite intent for battery.
o One note: for most of the intentional torts (IIED is different for one) recklessness is not enough to establish intent.
· Factors such as age or mental illness do not negate intent Kids and those with diminished mental capacities are held to the same standards as normal adults (substantial certainty)
o However, courts consider these factors in determining if intent exists.
· Actor does not need to intend injury (Motive Immaterial)
o Rule: Intent requires no showing of intent to injure or other bad motive. The intent of the actor that is relevant for purposes of intentional torts is the intent to bring about the consequences that are the basis for the tort. Thus, a person may be liable even for an unintended injury if he intended to bring about such “basis for the tort” consequences.
§ Case: Ranson v. Kitner
· D hunting wolves. P’s dog had a resemblance to a wolf. P’s dog killed as if it were a wolf.
o Holding: Does not matter that they were acting in good faith or bad faith. Requisite Intent was established. They purposefully caused the harmful action and were substantially certain that the consequences would occur. He intended to act on the piece of property (dog). Good faith does not negate intent. It did not matter that he intended to kill a wolf, and killed a dog. He intended harmful contact and committed harmful contact. The circumstance element of the dog did not require knowledge or purpose.
o Think the Shocking case: Dumbass friends were shocking each other as a joke and one of the participants get injured.
§ Here we need to determine purpose (probably not true purpose as to the result), and he might not have been substantially certain that a result would occur. However, we can say that he was substantially certain that offensive contact would occur, or they could say that he intended harmful contact.
· Transferred Intent
o Intent will be found where a defendant intends to commit one of the five intentional torts against a particular person, but instead:
§ Commits that intentional tort against a different person
§ Commits a different intentional tort against a person
§ Commits a different intentional tort against a different person
o Can be transferred between 5 intentional torts:
§ False Imprisonment
§ Trespass to Land
§ Trespass to Chattels
§ NOT Intentional Infliction of Emotional Distress
o Case: Talmage v. Smith
§ D throws stick at a boy, hits another boy in the eye by mistake.
§ Holding: Liable for intentional tort of battery because he intended to cause harmful contact to someone. Transferred intent.
· The classic hypo A tries to shoot B but shoots C instead, the intent transfers from B to C.
· Also they transfer between the 5 “trespass writ” torts!!
o I intend on throwing a rock into Bs property (trespass to land and hit A) I had the intent for trespass to land and committed a battery.
o I intend on throwing a rock at B to scare him, B instead gets hit with the rock. I intended B to have the imminent apprehension of harmful or offensive contact, but I committed a battery. I would still be liable.
· Elements of Battery
o (1) Conduct
o (2) Intentionally – Not to cause the resulting harm but the intent to 1) cause harmful or offensive contact or 2) cause the imminent apprehension of harmful or offensive contact. (or be substantially certain that 1 or 2 would result)
o (3) Causing
o (4) Harmful or offensive contact with the person of another – there must be some sort of contact for there to be a battery, the money received at trial is less if there is no harm, but there must be some sort of contact.
· Harmful Contact
o Any physical impairment of a condition of another’s body or physical pain or illness – remember alterations count
§ There is an impairment of a condition of another’s body or physical pain or illness function of any part of the other’s body is altered to any extent even if the alteration causes no harm
o Restatement §13 (Harmful Contact)
§ An actor is subject to liability to another for battery if (both!)
· (1) He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact
· (2) A harmful contact with the person of the other directly or indirectly results
· Offensive Contact
o Offends a reasonable sense of personal dignity – Objective test
§ P’s hypersensitive reaction is insufficient. “In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity.” Reasonable person test.
· Case: Broska v. Olson
o P was examined by D, a doctor who has aids. The doctor was not negligent, and P did not contract aids as a result of using Ds services. There was no actual harm, they were only claiming mental anguish etc. For battery they were claiming that the contact was “offensive” to them.
o Holding: (majority rule) “We hold that the fear of contracting a disease with exposure to a disease-causing agent is unreasonable. Thus, absent actual exposure to HIV, plaintiffs cannot recover for fear of contracting AIDS”
· Do not want to reward irrational fear of AIDS virus (create greater misunderstanding about the disease)
o Minority Rule: Recovery is limited to the distress suffered during the window of anxiety period, that is, the time between possible exposure to HIV and the receipt of negative test results.
o Exceptions: Rules will not apply if the defendant knows of the plaintiff’s hypersensitivity and proceeds anyway.
o Restatement §18 (Offensive Contact)
§ An actor is subject to liability for battery if (both)
· He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact
· An offensive contact with the person of the other directly or indirectly results (offending a reasonable sense of personal dignity can count)
§ An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of infliction it and therefore, would be negligent or reckless if the risk threatened bodily harm.
· Intent is a big part of intentional torts. If there is not intent to cause offensive or harmful contact, or they were substantially certain a result would occur then there is no battery
· What does not constitute applicable conduct by the defendant?
o Unconscious acts
o Reflex actions
o Non-voluntary actions
§ A pushes b into c, b is not liable, but A is. (transferred intent)
· Apprehension is not necessary
o A person may recover for battery even though he is not conscious of the harmful or offensive contact when it occurs
· Causation-direct OR indirect results
o The harmful or offensive contact must be caused by the defendant’s act or some force that set the acts into motion. Foreseeability of results of his actions is not relevant.
§ Ex: D chases P and throws a piece of wood at him desiring to hurt him. Wood hits a pile of rocks which crush D to death.
· Actual Damages not required
o P can recover at least nominal damages even though he suffered no severe actual damage. In majority of jurisdictions punitive damages may be recovered where defendant acted with malice.
o Ice Skating Hypo: A breaks arm. B comes in and moves the arm to administer aid, however, because B altered the arm it could qualify as intending to cause harmful contact (under the restatement definition of harmful contact)
· Split: Intent Variation
o Majority: Intent to offend
§ Ex: Supreme court of Colorado ruled battery cannot be established without intent that the contact be harmful or offensive.
§ An act done without intent of battery does not make actor liable for battery based on conduct makes actor negligent or reckless.
o Minority: Mere intent to contact rule
§ As long as D intends to make the contact, requisite intent is satisfied.
· Case: White v. University of Idaho
o Teacher touches
ment to recover
§ Oh fuck I am confined right now
o Minority rule: Plaintiff must be aware of confinement in all circumstances to recover
§ Hey wait a minute I was confined two days ago
o The defendant’s intentional act must result in the confinement of the plaintiff within boundaries fixed by the defendant for some period of time
o Confinement requires that a plaintiff be restricted to a limited area without knowledge of a reasonable means of escape.
§ If a reasonable means of escape is available and known to the plaintiff, then false imprisonment has not occurred
· No duty for P to search for a means of escape or to run any risk of harm to her person or property
o Sufficient Means of Confinement
§ Time is irrelevant
§ Physical Barriers
§ Physical Force
· False imprisonment will result where P is restrained by the use of physical force directed at him or a member of his immediate family. An action may also lie if the force is directed against P’s property
o Reasonableness of P’s submission is immaterial
§ Football player imprisoned by nun
§ Direct Threats of Force
· Words alone can be sufficient
o Threats of immediate violence
§ Indirect Threats of Force
§ No means of Escape
§ Invalid use of legal authority
o Insufficient means of confinement
§ Moral threats
· A cause of action will be sustained if a person remains in the area merely because he is responding to the exertion of moral pressure
§ Future threats
§ Economic threat
§ Reasonable means of escape: if P has a reasonable means of escape that does not put them in harms way or they are unaware of the escape, this can limit liability.
· Yeah I wanted to keep my little sister in the house by shutting the front door but she could have opened it or gone out one of the other doors
o If an actor is under a duty to release the other from confinement, or to aid in such a release by providing means of escape, his refusal to do so with the intention of confining the other is a sufficient act of confinement to make him subject to liability
§ Ex: Passenger in car asks to leave, but you refuse.
· Shopkeeper’s Privilege
o A store owner who reasonably believes another person has stolen, or is attempting to steal property, is privileged to detail that person in a reasonable manner for a reasonable time to investigate ownership of the property
§ 1. Reasonable belief a person has stolen or is attempting to steal
§ 2. Detention for a reasonable time
§ 3. Detention in a reasonable manner
o This is not based on customer’s guilt or innocence, but instead of reasonableness of a store’s action under the circumstances
· Grant v. Stop-n-go market: D thinks that P is stealing something and retains him in the back. Calls the police and the police take the person in. The court held that the actions of the storekeeper were not completely reasonable because it was not a reasonable time and manner in this case.
· Wittaker v Sandford: D induced P to sail with D and when they got to their final destination D refuses to give P the means necessary to get to shore. This qualified as false imprisonment.
o Omission counting as false imprisonment
Intentional Infliction of Emotional Distress
· Elements of 1
o (1) Extreme and outrageous conduct
o (2) Intentionally (or recklessly) – notice that there is a lessened degree of culpability in IIED
o (3) Causing
o (4) Severe emotional distress – must be very severe courts do not want to give people relief for normal human life.
· Restatement § 46: Outrageous Conduct Causing Severe Emotional Distress
o One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
o Case: State Rubbish Collectors Ass’n v. Siliznoff. D tells P that they are going to beat him up unless he pays them. The P suffered severe emotional distress, but this did not fit the other torts, but circumstances that the court system should address. This is where the courts realized they needed to recognize pure emotional distress as its own tort.